Courts matter. They are essential to the rule of law. Without courts, laws can be disregarded, executive officials left unchecked, and people left without recourse. And the environment and the human connection to it can suffer. Judges stand in the breach. That said, judges can hardly on their own cause wholesale transformation of domestic environmental policy. In many countries, constitutional and apex courts have spoken seldom if at all about environmental constitutionalism. And yet, it is our contention that even these episodic assertions are important because they are indicative of a growing worldwide awareness of the potential of environmental constitutionalism. The mere fact that courts are focusing on the constitutional dimensions of environmental issues makes it more likely that environmental awareness will seep into the cultural consciousness for present and future generations. In environmental constitutionalism, a little goes a long way.
This Handbook is designed to provide jurists with an overview of environmental constitutionalism: the authors address what it is, the peculiar practical and procedural issues it presents, and how courts from around the globe have engaged it. Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. Environmental constitutionalism offers one way to engage environmental challenges that fall beyond the grasp of other legal constructs. It can be coalescent, merging governmental structures and individual rights approaches to further individual and collective norms and policies. It can be used to protect local concerns -- such as access to fresh food, water or air -- or global concerns like biodiversity and climate change that share elements of both human rights and environmental protection.
Environmental constitutionalism is variable, encompassing substantive rights, procedural rights, directive policies, reciprocal duties, or combinations of these and other qualities. Some aspects are fairly common. For example, about one-half of the countries of the world expressly or impliedly recognize a constitutional right to a quality environment. About the same number impart a corresponding duty on individuals to protect the environment.
Some provisions are quite specific, such as those that provide for rights of nature, or rights to potable water or other natural resources. Some are more ephemeral, recognizing trust responsibilities over natural resources or toward future generations, or addressing related subjects like sustainability or climate change. Some recognize environmental stewardship as a matter of national policy.
While most constitutional provisions addressing environmental concerns are narrative, some incorporate numerical outcomes, such as maintaining a percentage of prescribed tree cover, as in Bhutan (60 percent) and Kenya (10 percent).
There is also an uptick in provisions that are designed to afford special process rights in environmental matters. Environmental procedural rights normally involve requirements for environmental assessment, access to information, or rights to petition or participate. Such rights help to keep countervailing substantive rights vital. A constitutional guarantee to a beneficial environment may be more likely to take root when stakeholders have the right to receive free and timely information, participate in deliberations, and judicially challenge environmental decisionmaking. Procedural environmental constitutionalism is also important in its own right, and can be as or more efficacious than substantive environmental rights if courts are more comfortable ordering procedural rather than substantive remedies.
Environmental constitutionalism is playing an important role in recognizing the human rights implications of environmental degradation and climate disruption; to that extent, it has the capacity to address the sorts of environmental problems felt most acutely by those often ignored or underserved by existing legal structures. International treaties, principles and custom do little to advance environmental rights at the local and subsidiary level. There is as of yet no global environmental rights treaty. Moreover, multilateral and bi-lateral treaties that address environmental concerns are often of limited if any utility to individuals. And while domestic statutory and regulatory laws affording environmental protection and resource conservation are quite advanced in many nations, these laws seldom aim to advance environmental rights or environmentally-related social rights. In addition, while international human rights regimes most nearly approach the notion that individuals have a fundamental right to a quality environment, they are also often out of reach to individuals who would gain from the recognition of environmental rights at the constitutional level. Environmental constitutionalism can help to bridge the gaps left by these other legal regimes.
Some countries, like Brazil, France, and South Africa, incorporate most or all of environmental constitutionalism, while others eschew it entirely. And, in some countries, it exists almost entirely as a result of judicial action. The variety of provisions, aiming to protect different aspects of the environment with a range of scaffolding and enforcement mechanisms, attests to the growth of environmental constitutionalism throughout the world in number and in relevance.
Environmental constitutionalism is growing at the subnational level too, filling gaps in federal systems. Most prominently by states in the Americas in general, and Brazil in particular, subnational governments around the globe have seen fit to constitutionalize substantive and procedural environmental rights, environmental duties, and sustainable development for present and future generations, often with much more specificity and enforceability than provided in national constitutions. Subnational environmental constitutionalism can also be valuable in countries that have not yet recognized environmental rights at the federal level.
Environmental constitutionalism is an essential node in the web of national management of the environment, along with national statutory schemes such as environmental impact assessments and water framework legislation, adherence to international, multilateral and regional treaties and norms, and dialogue with subnational and local governments. As a result, it can be a complement to different regimes at the various levels of governance. Indeed, system of environmental rights, protections, and procedures can have impact beyond the courtroom: countries that have adopted environmental constitutionalism have been shown to have smaller per capita ecological footprints, have higher performance on several indicators of environmental indicators, be more likely to ratify international environmental agreements. There is also some evidence that environmental constitutionalism promotes domestic environmental laws and regulations, and may also be the culmination of, as well as the precursor to, domestic environmental laws. In sum, environmental constitutionalism is integral, not substitutive: it supports and scaffolds existing international and national legal systems. It advances constitutionalism generally and is a fitting subject for judicial consideration and examination.
The Handbook has eight chapters, each addressing subjects that jurists are likely to consider when hearing claims involving constitutional environmental provisions:
- Chapter 1 orients the roles of the judiciary in resolving claims sounding in environmental constitutionalism, including climate change.
- Chapter 2 surveys how environmental constitutionalism is exhibited at the national and subnational levels around the globe, including substantive, procedural and other provisions.
- Chapter 3 considers the justiciability of constitutional environmental rights, including standing, causes of action, timing and defenses, and presumptions about enforceability.
- Chapter 4 examines the particular challenges in interpreting and applying constitutional environmental claims.
- Chapter 5 discusses judicially-imposed remedies for violations of constitutional environmental rights.
- Chapter 6 explains the interplay between constitutionally-incorporated dignity rights and environmental constitutionalism.
- Chapter 7 engages the role of environmental constitutionalism in advancing climate justice.
- Chapter 8 concludes by exploring the particular and sometimes peculiar challenges and opportunities that environmental constitutionalism presents jurists.
The associated Compendium of Global Environmental Constitutionalism: Selected Cases and Materials contains leading cases (edited) and constitutional provisions from around the globe, as well as reference materials, and a selected bibliography.